Brookside Dairy Limited v Principal Ssecretary, Ministry of Defence & Attorney General [2016] KEHC 3537 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW MISC. APPLICATION NO.  327 OF 2015

BROOKSIDE DAIRY LIMITED ……........……PLAINTIFF/EXPARTE APPLICANT

VERSUS

1. THE PRINCIPAL SECRETARY,MINISTRY OF DEFENCE…..1ST RESPONDENT

2. HON. ATTORNEY GENERAL…..............................…….2ND RESPONDENT/DEFENDANT

JUDGMENT

1. Before me for determination is the Judicial Review Notice of Motion dated 30th October 2015.  The Exparte  applicant  Brookside  Dairy Limited seeks  from this court  Judicial Review  orders of Mandamus  to issue compelling the Principal Secretary  Ministry of Defence  and the Attorney General  to pay the exparte   applicant  the sum of  shs  2,173,831  plus interest   at 12%  per annum   from 21st  September  2012   when judgment was issued  in CMCC13256/2004  Nairobi until  payment in full.

2. The exparte applicant also seeks for orders   that compliance be effected within 14 days and in default, notice to show cause to issue to both respondents.  Costs are also prayed for.

3. In support    of the Notice of Motion  are grounds, statement  of facts, verifying  affidavits, supporting  affidavit, application  for leave   dated  14th August  2015    and annextures  which include  decree, judgment in  the suit  in the court below, certificate  of  order  and exhibits  to prove that  the  amount due  was indeed owing as claimed  and decreed by the trial court.

4. I have noted that the application was served upon the respondents who have not entered any appearance.  I have considered the Judicial Review Notice of Motion, the grounds, supporting affidavit, annextures and submissions by Mr Njuguna   counsel for the Exparte applicant.  I am satisfied that the application as presented is merited and ought to be granted.

5. However, I note that the Honourable Attorney General   was sued as the Principal Legal Advisor to the Government.  As an office, it does not owe any monies   to the Exparte applicant.  The decree and judgment in the lower court is clear that it is the Principal Secretary, Ministry of Defence that   was supplied   with milk and defaulted to pay. Accordingly, I grant Judicial Review  Order of Mandamus  directed  at the Principal Secretary, Ministry of Defence compelling him to pay to the Exparte  applicant the sum of  shs  2,173,831 as decreed  in CMCC 1325/2004 Nairobi, together  with interest  accruing  thereon  at the rate of  12%  per annum  from date of judgment  until payment in full.

6. In default of such payment   within   60 days from the date hereof.  The Exparte applicant is at liberty to apply as appropriate.

Orders accordingly.

Dated, signed, delivered at Nairobi this 25th day of July 2016.

R.E. ABURILI

JUDGE